13-3275-cr

United States v. Levine et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 6th 4 day of October, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 PIERRE N. LEVAL,

8 Circuit Judges,

GEOFFREY W. CRAWFORD,* 9

10 District Judge.

11

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13 UNITED STATES OF AMERICA, 

14 Appellee

15

16 -v.- 13-3275

17

18 LULZIM KUPA, 

19 Defendant-Appellant.

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21

* The Honorable Geoffrey W. Crawford, United States

District Judge for the District of Vermont, sitting by

designation.

1
1 FOR APPELLANT: JAMES R. FROCCARO JR., LAW

2 OFFICE OF JAMES R. FROCCARO,

3 Port Washington, New York.

4

5 FOR APPELLEE: ROBERT T. POLEMENI (with David

6 C. James on the brief) for Kelly

7 T. Currie, United States

8 Attorney for the Eastern

9 District of New York, Brooklyn,

10 New York.

11

12 Appeal from a judgment of the United States District

13 Court for the Eastern District of New York (Gleeson, J.).

14

15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

16 AND DECREED that the judgment of the district court be

17 AFFIRMED. 

18

19 Lulzim Kupa appeals from the judgment of the United

20 States District Court for the Eastern District of New York

21 (Gleeson, J.), sentencing Kupa to a 132-month term of

22 imprisonment. We assume the parties’ familiarity with the

23 underlying facts, the procedural history, and the issues

24 presented for review. 

25

26 On appeal, Kupa asserts a single claim of ineffective

27 assistance of counsel. This Circuit has a “baseline

28 aversion to resolving ineffectiveness claims on direct

29 review.” United States v. Morris, 350 F.3d 32, 39 (2d Cir.

30 2003) (internal quotation marks and citation omitted). 

31 See Massaro v. United States, 538 U.S. 500, 504 (2003)

32 (“[I]n most cases a motion brought under § 2255 is

33 preferable to direct appeal for deciding claims of

34 ineffective assistance.”).

35

36 Here, however, it is not difficult to adjudicate Kupa’s

37 claim on appeal. It is clear from the record that Kupa’s

38 claim fails on the merits because Kupa cannot prevail on the

39 performance prong of Strickland v. Washington, 466 U.S. 668

40 (1984), especially because “[j]udicial scrutiny of counsel’s

41 performance must be highly deferential.” Id. at 689. 

42 Kupa’s only argument is that counsel failed to argue that

43 Kupa should not be deemed a career offender. But counsel

44 did so argue: “I, as I indicated, wholeheartedly agree . . .

45 that he’s not a career offender.” A. 128; see also A. 131-

46 33. Indeed, the government accused Kupa’s counsel of

47 breaching the plea agreement precisely because he made this

2
1 argument. Government Appendix 29 (“[T]he government claims

2 that we have breached the plea agreement by arguing that

3 defendant is not a career offender.”). 

4

5 For the foregoing reasons, and finding no merit in

6 Kupa’s other arguments, we hereby AFFIRM the judgment of the

7 district court.

8

9 FOR THE COURT:

10 CATHERINE O’HAGAN WOLFE, CLERK

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